Under Doug Ford, Ontario’s tribunals are under severe attack

Posted on March 21, 2024 in Governance Delivery System

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TheStar.com – Opinion/Editorials
March 21, 2024.   By Star Editorial Board

The attack on the independence of adjudicative tribunals has flown almost entirely under the radar.

When Premier Doug Ford announced he wanted to appoint “like-minded” judges, critics were quick to condemn the assault on judicial independence.

In contrast, a similar assault on the independence of adjudicative tribunals has flown almost entirely under the radar.

The tribunals are quasi-judicial bodies that resolve many of the most common legal disputes, including landlord and tenant complaints, human rights issues and compensation claims for work-related or automobile accident injuries.

Consequently, Ontarians are more likely to seek relief from a tribunal than a court. Yet, since the Ford government took office in 2018, the independence of the tribunals have been under sustained attack, with devastating results.

According to Tribunal Watch Ontario, a non-partisan organization of law professors and former tribunal members, judges and civil servants, the assault began when the province declined to reappoint tribunal members appointed by Kathleen Wynne’s Liberal government.

To make matters worse, the Ford government then delayed appointing replacements, which resulted in rapidly increasing wait times and case backlogs. And although the government eventually started hiring new members, Tribunal Watch observed that “many have little or no adjudication experience and lack [the] recognized expertise” the law requires.

In fact, connections to the Ford government or the federal Conservatives seems a much more valuable asset than experience or expertise. Case in point: In 2019, the government created Tribunals Ontario, an umbrella organization that includes many of the most influential tribunals and appointed former federal Conservative candidate Sean Weir as its executive chair.

The patronage didn’t end there: According to an October report from the Investigative Journal Foundation, six of the nine senior Tribunals Ontario chairs “donated money to, served as a high-ranking staffer for, or [ran] for political office under the banner of a Canadian conservative party.”

The Ford government has therefore completed with tribunals what it has only started with the courts: The process of remaking them in the government’s own image. And to see the effects of that makeover, look no further than the debacle of the Landlord and Tenant Board.

In a report released last May, the Ontario Ombudsman said the backlogs led to “tenants on social assistance living with harassment or deplorable, unsafe conditions for months or even years on end,” and landlords who “faced financial ruin while they waited for hearings about tenants who were abusive, caused damage or refused to pay rent.”

Citing Tribunals Ontario’s most recent data, Tribunal Watch reports that tenants wait an average of 427 days to have their complaints resolved, compared to 70 days in 2018. Landlords fare little better, as they wait 342 days for an eviction order, up from just 32 days in 2018.

Furthermore, the board’s backlog reached more than 53,000 cases by March 2023, a dramatic increase from a little over 14,000 in fiscal year 2018/19.

Other tribunals experienced similar problems: The Licence Appeal Tribunal, which deals with accident claims, saw a threefold backlog increase from 2017/18 to 2022/23, and the Human Rights Tribunal’s backlog doubled after being folded into Tribunals Ontario.

As the Ombudsman remarked in his report on the Landlord and Tenant Board, these backlogs have resulted in tens of thousands of Ontarians suffering “significant hardship.” It’s difficult to see how that’s in the Ford government’s — or anyone else’s — interests, but it’s the inevitable result when merit takes a back seat to partisanship in hiring decisions.

This is why Ontario established an independent, arm’s-length committee to recommend judicial candidates, though the premier is doing his level best to compromise the independence of that committee.

And this is why the province needs a similar independent, arms-length committee to oversee the adjudicative tribunals system. Tribunal Watch has proposed establishing just such a committee — the Adjudicative Tribunal Justice Council — whose independence and impartiality is enshrined in legislation.

The provincial NDP has registered its support for the proposal, but while welcome, that’s not enough. If the province is to replace partisanship with merit in tribunal appointments — and more importantly, if it is to provide help rather than hardship to Ontarians — the government will follow suit.


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